In one of the few states where doctors are willing to perform them, abortions at or past 20 weeks gestation have been outlawed. In fact, Nebraska Gov. Dave Heineman (R) signed two new bills restricting abortion on Tuesday. Set to take effect in October, the first measure (The Pain-Capable Unborn Child Protection Act, gag me) is based on the claim that fetuses can feel pain at 20 weeks. The current standard in abortion restrictions is viability: generally 22 to 24 weeks.

The fetal-pain bill is partially meant to shut down Dr. LeRoy Carhart, who performs late-term abortions in Nebraska. It also appears to have been specifically designed to impact the national debate about abortion. Undoubtedly, the bill will be challenged, and the Supreme Court might be forced to answer the medical question of if and when a fetus can feel pain, or whether that matters.

For the record, “There is certainly no solid scientific evidence establishing that a fetus can perceive pain at these earlier stages, so any court decisions to uphold such broader laws could only do so by disregarding the importance of good scientific evidence,” according to Caitlin Borgmann, a law professor at The City University of New York.

Nebraska will also be the first state to restrict access to abortion by requiring doctors to screen women for mental or physical problems before performing the procedure. This law requires a doctor or other health professional to screen women to assess risk factors including “physical, psychological, emotional, demographic, or situational” factors. The law holds doctors civilly responsible if a screening fails to be comprehensive.

I’d love to know the rationale for this. Are those who pass the screening permitted to get their abortions whilst those deemed mentally unsound are prevented from doing so? “You belong to a dwindling demographic! You must help us multiply.” This is disturbing any way you look at it. I predict they will make the screening process drag on beyond the new 20 week deadline. Two birds!

I think ultimately both measures are designed to scare the living daylights out of abortion providers and dissuade them from serving women in need. “It’s very difficult to know for certain if you’re complying with this bill,” said Kyle Carlson, an attorney for Planned Parenthood of the Heartland.

24 Responses to “Chip, chip, chipping away at abortion access”

I heard about this on NPR this morning — fascinating how a lot of the same people who are sure fetuses can feel pain at 20 weeks don’t think animals feel enough pain to justify stopping using them for testing.

The pseudo-scientific approach to blocking abortion is a parallel to the battle between intelligent design and evolution. Since the purely faith-based appeal has not worked, they are now cloaking their rhetoric in “scientific” rationale, e.g. fetuses at 20 weeks can feel pain. As to the screening, doctors routinely screen patients they suspect of being mentally unstable (although that is done spottily at best), but this is a blatant attempt at intimidation, since it’s quite clear that they consider any woman who wants an abortion to be “disturbed”.

I used to work in a clinic and the doc wouldn’t perform abortions after 18 weeks because he felt they weren’t safe for the woman. That said, it was VERY rare that we encountered a woman past that point seeking an elective abortion (only once – an 17 yr old girl in extreme denial until one of her teachers sat her down and made her face facts and her fat belly). As I’m sure the folks on here know, most procedures at that point are of the medically necessary variety, usually a wanted/planned pregnancy that has or will result in fetal demise – leaving the woman the option to have a late term abortion or risk her own life (not to mention sanity) by delivering a deceased fetus.
Gotta love the compassion that tries to save a fleshy blob from perceived pain – but would require a woman, with unquestionably fully developed nerves and psyche, to labor and possibly die delivering a child that is already dead or has zero viability. Why isn’t this a bigger part of the viability debate?

Grr at the screening! Is the idea that if you’re crazy then you aren’t fit for an abortion…so you should raise a child?

Sometimes what I find most insulting with these prohibitions is the idea that they all seemed based on the alleged stupidity of women. I’m not even talking about the myth that women will elect to terminate a healthy, full term pregnancy. Laws like this new screening amount to a lot of hassle (and usually increased expense for the clinic – who will try to keep from passing on the new added expense to their patients). This is just like the laws requiring a woman to make multiple appointments on different days in order to get an abortion. The hope is that the hassle and the expense of the abortion will be too much and the woman will just have the child. And that’s what we want, right? A generation of adults raised by parents who couldn’t handle the expense,stress, and commitment of an abortion.

It’s a wonder any legislation not abortion related is getting passed in places like Nebraska and Oklahoma. Clearly those states have no more pressing issues (like say forming a militia) than stripping away women’s rights. So, on the one hand, Nebraska has determined that “protecting” fetuses at 20 weeks from pain is more important than providing women with access to a legal medical procedure. And on the other hand, Oklahoma feels it’s a-ok to unleash a volunteer militia that can inflict actual pain and suffering on the rest of us. Priorities, people, priorities.

I wonder if at this point someone should start a non-profit dedicated to flying women from low-access states to high access-states (eg New York). I know there are programs in some cities where people host women who are in a city for a procedure…I would definitely take part. It seems like without definitive federal action from one branch or another, there’s not a ton we in blue states can do about red state laws — so screw ‘em, if they don’t want to provide safe and legal abortion, we will. Obviously it’s not ideal but any means of increasing access is a positive, as far as I’m concerned.

Yeah, I just don’t understand the requirement to screen women for depression before they can get an abortion. I get screened once a month for depression because I’m pregnant and have some risk factors for PPD. I totally understand why nobody wants me raising a baby unsupervised when I’m an insomniac who hallucinated after her first kid’s birth expecting a second child with stressful birth defects. My doctor is clearly being responsible and looking out for the health of my entire family. I guess the idea is that women with risk factors are more at risk for the mythical post-abortion syndrome, but how is that a greater risk than PPD?

Also, the only time I’ve ever had to contemplate abortion (knock on wood that I never get pregnant again), it was late-term while we were waiting to see how many birth defects our soon-to-be daughter would have. I assure you, I was nowhere near mentally stable at the time, and that would have gotten worse if the news had been worse. Would that have disqualified me?

I 100% do not understand this mental screening. So… if the woman is deemed not mentally capable of making the decision to have an abortion, she is mentally capable giving birth to and raising child? Nay! Must give birth to the child. Yeah, because beyond the decision to terminate or continue with a pregnancy lie no more difficult decisions!

As to the physical assessment- so… your body is not capable of undergoing an abortion, but it is capable of laboring and birthing? Right. That makes total sense.

Obvi, the reason this shit is in place is to string out the process until the procedure is illegal at 20 weeks.

I’m 23 weeks pregnant right now. The other day it occurred to me that at this time, I have lost autonomous control of my body. If I wanted to terminate this pregnancy it would be illegal, and a man would make me have this baby. At this moment, my body is in control of the state. Fucking. Frightening.

@baraqiel: Excellent idea, although I can see the counter to that right now: the states will simply pass laws preventing non-residents from being provided an abortion. Still, before that happens, it might be a good idea to set up a pipeline to help women get the care they need.

@SkipToMyLou: As George Carlin said, people want government off their backs, but being in a woman’s uterus is just fine.

“Demographic or situational factors?” Huh? So like if you’re poor and unable to afford to raise a kid you can’t get an abortion because that’s an unacceptable demographic or situational reason? Are we now blocking women from getting abortions because “god will provide?” (Blerg!) What exactly are doctors supposed to be looking for?

@AmBam: I’m sorry but I can’t get behind that logic that it is insulting to women to have restrictions on abortion. Sure we do have statistics that show only 3% (that’s an estimation) of pregnant women have late term abortions, but without the restrictions how do we know that number would not be higher for elective abortions.
To me that is like saying it’s insulting to have laws on animal cruelty because what person would hurt an innocent puppy. There are plenty of people out there who are completely self-centered, self serving and borderline narcissistic. Maybe I just don’t have much faith in humans at all.

@SkiptoMyLoo: “…if the woman is deemed not mentally capable of making the decision to have an abortion, she is mentally capable giving birth to and raising child”
I’m guessing that is where adoption would come in. On the other hand that is tricky because there are women with mental illnesses and in such cases the court can intervene and make her have an abortion (or give it up for adoption). Ok I admit I saw it on Law and Order or it may have been a Lifetime movie. This is why I don’t understand this bill, if the woman is found incompetent to have an abortion wouldn’t it mean she is incompetent to raise a child. Unless the screening would provide info on whether she will regret it later, but don’t most abortion clinics have the patient go through a consultation anyway.

@DirtyLaundry: I suggest that you do some research into abortion statistics. There is simply no evidence anywhere that open access to abortion throughout pregnancy would send crowds of 30 week pregnant women to the nearest clinic. That is an anti-choice fairy tale. These abortions are done because either the fetus is irretrievably damaged or the woman’s life or health are at risk, or both. And if it makes you feel any better Dr Carhart (as well the late, much lamented Dr Tiller) reserve the right not to perform an abortion if it didn’t appear to be medically necessary.

Are you really saying that it makes sense for a mentally unstable woman to be forced to go through a pregnancy just so she can produce a baby for adoption? That’s grotesque. And every reputable clinic I know of does interview its patients before doing an abortion. I respectfully suggest you get your information from more reliable sources than tv shows.

. . .but without the restrictions how do we know that number would not be higher for elective abortions.

There are plenty of people out there who are completely self-centered, self serving and borderline narcissistic.

And you think these self serving narcissists should be responsible for pregnancy? I’m sorry, but I don’t see the problem with elective abortions. There are a lot of ways you can screw your fetus while it’s in your womb. If you don’t want to be pregnant, no matter how “selfish” your reason, you shouldn’t be pregnant. First because pregnancy frequently sucks and women aren’t incubators who should be required to support a parasite, and second because pregnancy does require some responsibility, and if you think someone is too selfish to make their own medical decisions, how can you possibly think they’re responsible enough to carry a child to term? Adoption is possible, but if my future child weren’t going to be healthy and white, it’s not a route I’d even consider. And if I don’t want to give up drinking or smoking or even crack, then why would society want me to be pregnant?

@dirtylaundry: even without the “raising a child” portion of the consequences of being forced to go through a pregnancy, forcing a woman deemed mentally incapable of making a termination decision to carry a child to term, labour, birth it, and hand it over for adopition is thoroughly absurd. Can you imagine how traumatizing it would be to have a fetus growing inside you that you had either actively demonstrated that you didn’t want, or were incapable of understanding?

I have been pregnant twice, and birthed one child child so far. Neither pregnancy nor the birth were benign experiences. If I had less capacity (mentally, physically, financially, emotionally) it would have been wretched. That would have been massively compounded if I had tried to procure a termination and been told I couldn’t.

This proposed legislation blew my blood pressure right over the top. Who the bloody hell do these cowboys think they are? When do we start having a public vote on whether men can procreate? How do demographics have anything to do with the decision to abort? And by situational, do they mean that if the sperm provider wants the pregnant woman to carry to term, she has to do it?

I don’t exactly see why the screening legislation is so bad — it’s redundant, but basically it’s just telling doctors to do what they do already. Abortion is a surgical procedure, so of course the doctor should get a medical history beforehand. And if a woman seems depressed or coerced, then the doctor should explore that with the patient prior to the procedure. And, finally, if the woman is mentally impaired enough, then she can’t give consent for the procedure. That doesn’t mean she can’t have it — just that her legal guardian or someone like that has to give consent for her. What am I missing?

Basically, a lot of states pass these laws such that the language includes penalties for noncompliance but no real definition of what compliance is. In other words, the law isn’t designed to help anyone or perform any function except giving an excuse to punish doctors.

In particular, the language of the law:
“Risk factor associated with abortion means any factor, including any physical, psychological, emotional, demographic, or situational factor, for which there is a statistical association with one or more complications associatedwith abortion such that there is 1 less than a five percent probability (P < .05) that such statistical association is due to chance. Such information on risk factors shall have been published in any peer-reviewed journals indexed by the United States National Library of Medicine’s search services (PubMed or MEDLINE) or in any journal included in the Thomson Reuters Scientific Master Journal List not less than twelve months prior to the day preabortion screening was provided;"

A woman is only considered to have given informed consent to an abortion if:
"At least one hour prior to the performance of an abortion, a physician, psychiatrist, psychologist, mental health practitioner, physician assistant, registered nurse, or social worker licensed under the Uniform Credentialing Act has:
(a) Evaluated the pregnant woman to identify if the pregnant woman had the perception of feeling pressured or coerced into seeking or consenting to an abortion;
(b) Evaluated the pregnant woman to identify the presence of any risk factors associated with abortion;
(c) Informed the pregnant woman and the physician who is to perform the abortion of the results of the evaluation in writing. The written evaluation shall include, at a minimum, a checklist identifying both the positive and negative results of the evaluation for each risk factor associated with abortion and both the licensed person’s written certification and the woman’s written certification that the pregnant woman was informed of the risk factors associated with abortion as discussed; and
(d) Retained a copy of the written evaluation results in the pregnant woman’s permanent record;"

According to wiki, PubMed has 19.5 *million* citations. It is now the responsibility of anyone who wants to perform an abortion in Nebraska to search all of these citations for any paper that has shown any "risk factor" as above described. Note that, according to the law as written, if a study found such a risk factor in, say, the 1980s but the study was since disproved, it still has to be included as a risk factor. Moreover, note the language used for the description of the written report — "at a minimum, a checklist". Would they really accept a checklist? Who knows? How are the evaluations supposed to occur? And so on.

But the section on punishment is quite clear — noncompliance opens the doctor up to all sorts of civil lawsuits and cost liabilities, including the following clauses:
"If a physician performed an abortion on a pregnant woman who is a minor without providing the information required in section 28-327 to the pregnant woman’s parent or legal guardian, then the physician bears the burden of proving that the pregnant woman was capable of independently evaluating the information given to her."

"Except in the case of an emergency situation, if a pregnant woman is provided with the information required by section 28-327 less than twenty-four hours before her scheduled abortion, the physician shall bear the burden of proving that the pregnant woman had sufficient reflection time, given her age, maturity, emotional state, and mental capacity, to comprehend and consider such information."

"In determining the liability of the physician and the validity of the consent of a pregnant woman, the failure to comply with the requirements of section 28-327 shall create a rebuttable presumption that the pregnant woman would not have undergone the recommended abortion had section 28-327 been complied with by the physician;"

And yet no information is given as to how any of these things could be proven or how this presumption could be rebutted.

You’re missing that women have to be screened for any risk factor cited in a peer-reviewed journal, without setting limits or defining peer-reviewed. It’s a trap for clinics – there will be more paperwork, more expense, and more ways to inadvertently mess up and get a visit from a biased prosecutor.

@mischiefmanager: I meant that is where adoption would come in for these people who are pushing this bill. I NEVER said or even implied that I supported this legislation.
The is no evidence to suggest because there is no access. I believe the only country that does not have restrictions is Canada, and you cannot let one country be the determining factor. Sure there can be online polls but the answer to a poll and actual behavior can be quite different.
@Av0gadro: A woman has up to 24-30 weeks to get an abortion for any reason. I never said I didn’t support elective abortions at all, I said I support them up to a certain stage in the pregnancy.
“If you don’t want to be pregnant, no matter how “selfish” your reason, you shouldn’t be pregnant.”
Yes, and if a women decided at 30 weeks into her pregnancy that she didn’t want to be pregnant at that point an emergency cesarean section and adoption should be the next alternative. What is the point of ending the life of a 30 week old fetus that can survive on it’s own? My point was that unlike AmBam implied, term restrictions are not insulting to women.

@Pedimd: Also, doesn’t it worry you that he legislators want someone to come in and do an in-depth psych exam on the woman and that this would go into a permanent medical record? For what other procedure is this required? Remember also that legislators and anti groups around the country have attempted to gain access to these records for various transparently false reasons. They claim to want to examine a clinic’s safety record, for example, when in fact what they want to do is find out who the patients are, as well as jam up the clinic’s operations.

@Dirty Laundry: I repeat, the reason women get late term abortions is because there is an urgent medical reason for it. Either the woman’s life or health is at immediate risk, or the fetus is dead or so damaged that it would die on birth. I don’t know of any reputable doctor anywhere who would do an abortion on a 30 week pregnant woman just because she wanted one. And no, it’s not true that women can access abortion services after 20 weeks anywhere they want. Most clinics won’t do them after 20 weeks, and if you don’t live near a hospital that will do them, you’re screwed.

You seem to be missing my point. I do know that those are the only reasons women get late term abortions because those are the guidelines set for them. MY POINT is that if there were no guidelines the results might be a bit different.
However, I do agree that it might be difficult to find a doctor willing to perform a late-term abortion even if there were no restrictions.
“And no, it’s not true that women can access abortion services after 20 weeks anywhere they want. Most clinics won’t do them after 20 weeks”
Did you read past this sentence in SarahMC’s post:
“The current standard in abortion restrictions is viability: generally 22 to 24 weeks.”

@DirtyLaundry – Just because the procedure is legal until viability doesn’t mean that clinics will actually perform the procedure until viability. For example, the clinic where I normally escort will perform abortions only up to the 21st week. At the Planned Parenthood where I sometimes escort, they stop at 15 weeks. Once the patient is in the second trimester, the surgical procedure changes and not every clinic has a doctor who is qualified to perform that surgery.